Opinion  EC-COI-84-33

Date:	03/12/1984
Organization:	State Ethics Commission

A state employee assigned by his agency to work for a different state agency on a program that requires round-the-clock work would violate § 7 by accepting overtime pay from the agency that operates the program because such additional compensation from a second state agency would constitute prohibited financial interest in a second contract.

 

Facts

You are employed and compensated by a Division (Division) of the state department ABC. You are one of the Division employees assigned to work exclusively for the state Department DEF. Your primary responsibilities involve implementation of a particular DEF program (Program). You perform these duties during a normal business day.

DEF requires personnel for the Program on a 24-hour basis. Currently DEF employees are paid a flat sum per week, plus whatever overtime might be accumulated, to be on call for the program around the clock. Division employees assigned to DEF, but paid by the Division, do not participate in this system.

Question

May Division employees assigned to work for DEF, but paid by the Division, be compensated by DEF for providing Program services on a 24-hour basis?

Answer

No.

Discussion

An employee of the Division is a state employee as defined in the conflict of interest law, G.L. c. 268A, § 1 et seq., and, as a result, is covered by the provisions of that law.

Section 7 of the conflict law prohibits a state employee, unless eligible for an exemption contained therein, from having a financial interest in a contract made by any state agency. The purpose of this prohibition is to avoid the impression among members of the public that state employees have unfair access to state contracts. "Because it is impossible to articulate a standard by which one can distinguish between employees in a position to influence and those who are not, all [are] treated as though they have influence." Buss, The Massachusetts Conflict of Interest Statute: An Analysis, 45 B.U. Law. Rev. 299, 374(1965).

Employment arrangements like that which would exist between you and DEF in connection with the around-the-clock Program work are considered contracts for purposes of G.L. c. 268A, § 7. Your receipt of compensation provided for that work would give you a financial interest in that contract.

Prior to 1983, none of the exemptions to § 7 would have permitted a full-time state employee to maintain simultaneously another employment contract with the state. However, chapter 612 of the acts of 1982 (effective March 29,1983) rewrote a portion of G.L. c. 268A, § 7 in such a way as to permit a full-time state employee to maintain a second position provided several conditions are satisfied. The exception found in sub-part (b) of § 7, applies to a state employee;

     a) other than a member of the General Court;

     b) who is not employed by the contracting agency, or an agency which regulates the activities
     of the contracting agency; and

     c) who does not participate in or have official responsibility for any of the activities of the
     contracting agency;

     d) if the contract is made after public notice or, where applicable, through competitive
     bidding;

     e) the state employee files with the Commission a full disclosure of his interest in the contract;

     f) the service will be performed out-side his or her normal working hours;

     g) the services are not required as a part of his or her regular duties;

     h) the employee is not compensated for these services for more than 500 hours during a
     calendar year; and

     i) the head of the contracting agency makes and files with the Commission a certification that
     no employee of that agency is available to perform those services as part of their regular
     duties. However, because you are assigned by the Division to work for DEF, and your normal
     duties involve the very type of Program services you would be doing, you participate in the
     activities of the contracting agency and the services are a part of your regular duties (see c)
     and g) above). Therefore, you do not qualify for this exemption and are prohibited by § 7 from
     entering into this arrangement with DEF.^[1]

 

End Of Decision

 

^[1] If it can be arranged in such a way that the Division would compensate you (and other Division employees) for your additional services for DEF as overtime, § 7 would not apply since there would be no state contract other than your original employment arrangement which, of course, is not prohibited.